United States v. Miguel Sotelo

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-10012 Plaintiff-Appellee, D.C. No. 2:14-cr-00113-KJM-DB-1 v. MEMORANDUM* MIGUEL SOTELO, Defendant-Appellant. Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding Submitted August 15, 2023** Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges. Miguel Sotelo appeals from the district court’s judgment and challenges his guilty-plea conviction and 132-month sentence for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). Pursuant to Anders v. California, 386 U.S. 738 (1967), Sotelo’s counsel has filed a brief stating * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). that there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided Sotelo the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed. Sotelo waived his right to appeal his conviction and sentence. Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80 (1988), discloses no arguable issue as to the validity of the waiver. See United States v. Watson, 582 F.3d 974, 986-88 (9th Cir. 2009). We accordingly dismiss the appeal, with the exception of standard conditions 4, 5, and 13, which are unconstitutionally vague. See United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018); see also Watson, 582 F.3d at 977 (appeal waiver does not bar a constitutional challenge to a supervised release condition). We remand for the district court to strike or modify these conditions consistent with our opinion in Evans. See United States v. Ped, 943 F.3d 427, 434 (9th Cir. 2019). Counsel’s motion to withdraw is GRANTED. DISMISSED; REMANDED with instructions. 2 23-10012